TERMS AND CONDITIONS
BY USING MARKETING VALLEY LTD SERVICES OR ACCEPTING ANY WORK TO BE CONDUCTED ON YOUR BEHALF, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these conditions:
Affiliate – a party acting as an advocate for third parties and who receives a commission or fee for each Client who engages the third party services through them;
Business Day – a day other than a Saturday, Sundar or public holiday in England, when banks in London are open for business;
Company – Marketing Vallery Ltd incorporated and registered in England and Wales under company number the Company number 12293037 and whose registered office is Effingham Road, KT6 5JZ
Conditions – these terms and conditions as amended from time to time;
Contract – the contract between the Company and the Client for the supply of services and/or products and subject to and in accordance with these Conditions;
Client– The person or firm who purchases Services from the Company;
Client Materials – include all documents, information and materials provided by the Client to the Company relating to the Services.
Data Protection Legislation – the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulations relating to privacy;
Force Majeure – means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying a party from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions but not including an inability to pay;
Free Account – where the Client is given free access to any part of the Services and an account is set up for that Client without any charges;
GDPR – the General Data Protection Regulation ((EU) 2016/679);
Intellectual Property Rights – patents, utility models, right to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals of extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Reseller Services – the Services which the Company provides to the Clients.
Proposal – a description of the services and quote that can be provided by the Company to the Client;
Services – the services, comprising marketing services, supplied by the Company to the Client;
Service Specification – the online description or specification for the Services offered by the Company; and
UK Data Protection Legislation – any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
2. BASIS OF CONTRACT
2.1 – The Proposal constitutes an offer made by the Client to purchase Services in accordance with these Terms and Conditions.
2.2 – The Proposal shall be deemed to be accepted when either the Company acknowledges the Proposal or commences performances at which point and on which date the Contract shall come into existence (“Commencement Date”). Not every Proposal will be acknowledged by the Company in writing. All Proposals shall be subject to availability.
2.3 – The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract. No additions or modifications to or terms inconsistent with these terms and conditions shall be binding unless agreed in writing by the Company.
2.3 – Any samples, photographs, performance data, descriptive matter or advertising issued by the Company and any descriptions of the properties of the Products or illustrations or descriptions of the Services contained in the Company’s catalogues or brochures and website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
2.4 – These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 – At any time and without notice to the Client, the Company reserves the right to make any changes to the design and/or specification of Products and/or Services which are required:
2.5.1 – in order to comply with any applicable safety guidance; or
2.5.2 – in order to comply with any applicable statutory or other regulatory requirements; or
2.5.3 – for any other reason (for as long as such change does not materially affect the quality or performance of the Products and/or Services).
2.6 – Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.7 – Any cancellation of a Proposal for Products/Services can only be accepted if the Company has received notice in writing from the Client before work has commenced.
2.8 – Any cancellation of a Proposal for Services will be subject to a late cancellation fee if cancellation takes place with notice of 2 Business Days or fewer.
2.9 – There is no obligation on the Company to provide trial period accounts, Free accounts, paid Services accounts, Reseller accounts or any other form of account.
2.10 – There is no obligation (upon either the Company or the Client) to extend any trial period or Free Account period into a contract for paid Services.
2.11 – All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
3. SUPPLY OF SERVICES
3.1 – the Company shall supply the Services to the Client in accordance with the Proposal pursuant to these Conditions and the Services shall continue to be supplied, unless the Contract is terminated in accordance with these Conditions.
3.2 – the Company shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 – the Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirements, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
3.4 – the Company warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 – the Company shall provide technical support during office hours Monday – Friday 9am – 5.00pm (excluding English bank holidays). We do not provide any Client facing support out of these hours. The Company shall use reasonable endeavours to respond to the Client’s notification of interruptions or other problems with the Services and will seek to rectify any problems with reasonable diligence and within a reasonable timescale.
3.6 – Where the Services include Reseller Services or Affiliate Services, the Client acknowledges that interruptions and other problems with the Reseller Services are not within the Company’s power or control. In such circumstances, the Company will act as an intermediary only and cannot be held responsible for the actions or inactions of any Service Provider. Any particular uptime availability level will be determined solely by the Service Provider.
3.7 – Any dates quoted for delivery of the Services are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in the delivery of the Products that is caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Services.
3.8 – Where the Client provides the Company with any account or log in details (whether for any social media account, account with a Service Provider or otherwise) the Company shall use its reasonable endeavours to keep those account and/or log in details confidential and secure and undertakes to only use the same for the purpose of the provision of the Services.
3.9 – If the Company fails to deliver all or some of the Services, the Client must notify the Company in writing within five Business Days from the date of delivery otherwise the Company will not be held liable for any loss suffered or incurred by the Client whatsoever in respect of the failure to deliver the Services.
4. CLIENT OBLIGATIONS
4.1 – The Client shall:
4.1.1 – ensure that the terms of the Proposal and any information it provides are complete and accurate;
4.1.2 – cooperate with the Company in all matters relating to the Services;
4.1.3 – if required for the provision of the Services, provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s accounts including but not limited to its social media accounts and accounts with any Service Providers, premises, office accommodation and other facilities as reasonably required by the Company;
4.1.4 – provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.5 – ensure that all emails sent using the Services provided by the Company:
4.1.5.1 – includes a clear statement identifying the Client or the person on whose behalf the email is sent;
4.1.5.2 – includes a valid email address at which the recipient can contact the Client (or the person on whose behalf the email is sent) if they wish to opt out of receiving emails or request that they are not contacted (such means for opting out should be simple) together with the sender’s full, verifiable, legitimate postal address;
4.1.5.3 – is lawful in the jurisdiction of the recipient; and
4.1.5.4 – is less than 2mb in size including attachments.
4.1.6 – ensure that all emails sent using any Service Providers services are sent in accordance with the Service Providers terms and conditions.
4.2 – The Client undertakes and warrants that the Services shall not be used directly or indirectly for any unlawful purpose and that the content of any website and emails shall not be unlawful. For the purpose of this Contract, the term “unlawful” means in breach of any applicable law, regulations or codes of practice in force, from time to time, in any jurisdiction and shall include but is not limited to:
4.2.1 – civil and criminal offences of copyright and trademark infringement;
4.2.2 – transmission or display or posting of abusive, indecent, obscene or pornographic material;
4.2.3 – commission of any criminal offence (including deliberate transmission of computer viruses) including, but not limited to, pursuant to the Computer Misuse Act 1990 or similar legislation in any country;
4.2.4 – any transmission or display or posting of any material which is defamatory, libellous, offensive, abusive, or menacing character or which causes annoyance, inconvenience or needless anxiety to any other person;
4.2.5 – transmission or display or posting of any material in breach of the Data Protection Legislation or of any material which is confidential or is a trade secret;
4.2.6 – use of the service in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere;
4.2.7 – the use of the Services for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing “links” or “how to” information to such material; and
4.2.8 – use of the Services to send an email to any recipient to which the recipient has not consented to (unless authorised by any applicable law or legislation); and
4.2.9 – anything misleading or which constitutes a misrepresentation
4.3 – The Client undertakes not to host images or files on the Company’s, or any Service Provider’s servers save as required for the proper performance of the Services.
4.4 the Company does not accept and shall have no responsibility, or liability for the personal data of any email recipients whom the Client has sent, or intends to send emails to using the Services or the content of any emails sent using the Services or for sending them to recipients in accordance with the terms of the Contract and the Client will indemnify the Company against all and any damages, claims, expenses, losses, fines and costs that the Company may incur as a result of any breach of clause 4.1 to 4.4 above.
4.5 – the Client will ensure that that any content supplied to the Company complies with all applicable laws, regulations and requirements, in place from time to time, of any country from which it can be accessed and the Client will indemnify the Company against all and any damages, claims, expenses, losses and costs that the Company may incur as a result of any breach of this clause 4.5 by the Client.
4.6 – the Company reserves the right to monitor any communications passing through its servers in connection with the Services.
4.7 – If the Services are used for any unlawful purpose the Company, or any relevant Service Provider may suspend or terminate the Services immediately and at the same time as suspension or termination occurs the Company shall, if it is lawful to do so and provided it has been notified by the Service Provider of the suspension or termination, notify the Client.
4.8 – The Client shall comply with the Company’s and any Service Providers policies which are in place from time to time in respect of the Services. The Client further agrees to keep its password and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all staff are aware of the confidential nature of such information. The Client is solely responsible for all activities that occur under the Client’s password or account. The Client shall notify the Company without undue delay if it believes that its password and other access details for use with the Services is no longer secret.
4.9 – The Client agrees to undertake the following, when requested, in relation to the Services:
4.9.1 – to supply, in a timely manner, the Company with full and accurate details (including but not limited to, names and email addresses) of all recipients of emails sent using the Services (the “List”);
4.9.2 – to supply, in a timely manner, the content, images, designs and any other information the Client reasonably requires to be sent using the Services (the “Client Content”); and
4.9.3 – to instruct the Company as to when the emails are to be sent to the recipients.
4.10 – Where the Client submits any Client Content to the Company pursuant to clause 4.9.2, the Client:
4.10.1 – warrants that: (i) such Client Content is the Clients own original work or that of its licensors; (ii) the Client has the right to make the Client Content available to the Company or the Service Provider for the purpose of the Services; and (iii) the Client Content is and will continue to remain accurate, comprehensive and up-to-date and is not unlawful;
4.10.2 – indemnifies the Company against all legal fees, damages, claims and other expenses that may be incurred by it as a result of the Client breaching clause 4.10.1;
4.10.3 – agrees to waive any moral rights in the Client Content (or warrants that its licensor has waived its moral rights); and
4.10.4 – where the Client Content is sent by email using the Services, acknowledges and agrees that such Client Content may be copied or downloaded by any recipients.
4.11 – Where the Client submits Client Content to the Company (including without limitation any text, graphics, video or audio) the Client is required by such submission to grant to the Company a perpetual, royalty-free, non-exclusive, sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and exercise all copyright and publicity rights with respect to any such work worldwide.
4.12 – The Client accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any third party resulting from its use of the Services to the Company and the Company does not accept and shall have no responsibility, or liability for any such complaints made.
4.13 – The Client accepts that if the Company receives a complaint from any third party in relation to the Client’s use of the Services or any emails sent by the Client using the Services, and the Client has failed to comply with the provisions of clause 4.1.5 and the Company reserves the right, without liability to the Client, to disclose the Client’s details (e.g. its name and contact details) to any such third party
4.14 – The Client accepts that Client usage of the Services or any account provided shall act as acceptance of these terms and conditions and the Company’s Anti-Spam policy.
4.15 – The Client warrants, represents and undertakes that it will not delete, bulk unsubscribe or modify its account other than in accordance with honest commercial practices and not for the sole purpose of avoiding any billing threshold agreed with the Company.
4.16 – If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
4.16.1 – the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
4.16.2 – the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4.16;
4.16.3 – the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default; and
4.16.4 – the Company shall have the right to increase any fixed price Charges in accordance with clause 9.5.
4.17 – The Client accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any Visitor and the Company shall have no responsibility or liability for any such complaints made.
4.18 -The Client acknowledges and accepts that it is its sole responsibility to check both the Client Content and the the Company Content (together “Content”) as well as all emails prior to them being published, going live or being sent to any third party to ensure that the Content is correct, displayed accurately and to ensure that all links within such Content operate correctly. the Company shall have no liability whatsoever for any errors in any emails or published Content.
5. INTERNET MARKETING SERVICES
5.1 – the Company shall provide the Internet Marketing Services in accordance with the Proposal, which may include (as applicable):
5.1.1 – providing the Internet Marketing Services with the objective of enhancing and optimising the rankings and prominence of the Client’s website (as set out in the Proposal) in the results pages of Internet search engines;
5.1.2 – managing the Client’s keyword and pay-per-click advertising including but not limited to Google Ads, Bing ads, Linked-In ads, Facebook ads (as specified in the Proposal) ; and
5.1.3 – managing, and publishing content on, one or more of the Client’s social media accounts (including Instagram, Twitter, Facebook, and LinkedIn);
5.1.4 – providing content for the Client’s website and other digital marketing publications; and/or
5.1.5 – writing blogs and other content at the Client’s request.
5.2 – Where the Internet Marketing Services include the production of any content, whether such content is for use on the Client’s social media accounts, websites, other digital marketing publications, blogs or otherwise (“the Company Content”):
5.2.1 – the Client is required to provide specific details about the exact nature of the Client’s requirements (“the Brief”). Where no Brief is provided or an insufficient Brief is provided the Company reserves the right to terminate the Contract with immediate effect. It is the Client’s responsibility to ensure that the information contained within the Brief is an accurate reflection of their requirements and any complaint as to the nature of the Company Content delivered will be considered against the Brief.
5.2.2 – once agreed by the Company, the Brief cannot be changed or amended by the Client;
5.3 – The Client acknowledges and agrees that the Company does not guarantee: (i) any search result position for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a website; (ii) or the availability of, or the traffic generated by, a keyword; or (iii) any performance targets or exposure generated by publishing content on the Client’s social media accounts.
5.4 – The Client acknowledges that the Company has no control over the policies of search engines:
5.4.1: with respect to the type of websites and/or content that they accept or the ways in which websites are ranked either now or in the future. As a result search engines may cease to list a website at its discretion and the Company shall not be liable to the Client for any such actions of search engines; and
5.4.2 – with respect to keyword and pay-per-click advertising, these policies are constantly under development and testing and, as a result, the Company cannot guarantee that the Client’s advert will appear on any specific page (or at all).
5.5 – The Company is not responsible for changes made to:
5.5.1 – the Client’s website following the provision of the Internet Marketing Services by other parties, or the Client (in choosing to link to or obtain a link from a particular website without prior consultation with the Company),
5.5.2 – the Client’s keyword or pay-per-click accounts; or
5.5.3 – the Client’s social media accounts (including the deletion of content or subsequent posting of content), that adversely affects the performance of the Internet Marketing Services (including search engine rankings of the Client’s website and social media content exposure).
5.6 – The Company shall not be responsible for the Client overwriting actions it has taken as part of the Internet Marketing Services.
5.7 – The Company may report to the Client material issues with the performance of the Internet Marketing Services. Upon the reasonable request of the Client, and subject to an agreement on costs between the parties, the Company shall use reasonable endeavours to correct any such material issues with the performance of the Internet Marketing Services.
5.8 – Solely for the purposes of the Company providing the Internet Marketing Services, the Client agrees to provide the Company with the following:
5.8.1 – (where not already available) administrative or back-end access to the Client’s relevant website for analysis of its content and structure;
5.8.2 – permission for the Company to make changes to the Client’s website for the purpose of optimisation or to add content which it has prepared at the Client’s request;
5.8.3 – permission for the Company to communicate directly with any applicable third parties connected with the Client’s website (for example, the Client’s web designer) in order to provide the Internet Marketing Services;
5.8.4 – access to existing traffic statistics for the Client’s website in order for analysis and tracking purposes;
5.8.5 – where the Client’s website is lacking in textual content, the Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages;
5.8.6 – access to the Client’s relevant social media accounts; and
5.8.7 – permission to post and publish, in accordance with the Specification, content on the Client’s relevant social media accounts.
6. TITLE AND RISK
6.1 – The risk in the Services shall pass to the Client upon completion of delivery.
6.2 – If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.3 – If either party requests a change to the scope or execution of the Services, the Company shall, within a reasonable time, provide a written estimate to the Client of:
6.3.1 – the likely time required to implement the change;
6.3.2 – any necessary variations to the Company’s charges arising from the change;
6.3.3 – the likely effect of the change on any estimated timetable for delivery; and
6.3.4 – any other impact of the change on the Contract.
6.4 – If the Client wishes the Company to proceed with the change, the Company has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, and any other relevant terms of the Contract to take account of such change, and the Contract has been varied.
6.5 – The Company may charge for the time it spends assessing a request for change from the Client on a time and materials basis.
7. CHARGES AND PAYMENTS
7.1 – Except for where the Client makes a one-off purchase, or accesses the Services by way of a Free Account, all Clients shall be subject to a minimum Contract term of 3 months (the “Minimum Term”) (or as otherwise previously specified in Proposal or any other applicable documents which forms part of the Contract) and, thereafter, the Contract will continue until and unless either party terminates the Contract.
7.2 – The Charges for the Services shall be the amount set out in the Proposal. The Charges shall remain in force for the duration of the Minimum Term. All amounts due under the Contract shall be paid by the Client to the Company in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Any deposits paid by the Client are non-refundable.
7.3 – The price for services shall be the price set out in the Proposal or, if no price is quoted, the price set out in the Company’s published price list as at the date of the Proposal; and
7.3.1 – The Charges as stated in the Proposal excludes the following which the Client shall be liable to pay in addition:
7.3.1.1 – the cost of any disbursements requested by the Client including images and typefaces; and
7.3.1.2 – VAT, which the Company shall add to its invoices at the appropriate rate.
7.4 – Where the Services comprise of a one-off purchase, the Client shall pay each invoice submitted to it by the Company in full, and in cleared funds, within 30 days of receipt. Otherwise, where the Services are accessed other than by way of a Free Account, the Client shall pay the fees for the Services by standing order or credit card payment on the due date as set out in writing by the Company from time to time. If the Client fails to set up or cancels its standing order mandate then the Company reserves the right to charge an administration fee. Where the Client supplies the Company with details of the Client’s credit card and no standing order has been set up, the Client agrees that the Company will charge the credit card for payment of the agreed fee on the due date. If the Client objects to the fee, the Client should inform the Company upon receipt of the invoice prior to the due date.
7.5 – The company reserves the right to increase the Charges after the Minimum Term where:
7.5.1 – the Client fails to provide any Client Materials requested by the Company by the date agreed by the parties or as set out in the Proposal (or if no date is agreed or set out in the Proposal, within 2 weeks of the Company’s request);
7.5.2 – the Client enters into the Contract but then requests that the Company place the provision of Services on hold for a period in excess of 2 weeks;
7.6 – if the Client fails to pay the Company on the due date, the Company reserves the right to:
7.6.1 – charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
7.6.2 – suspend the Services or terminate the Contract and Services immediately and delete any data provided to the Company or any Service Provider pursuant to the provision of the Services. Any amounts due up to the point of suspension or termination will remain due and payable as if no suspension or termination had occurred; and
7.6.3 – increase the price of the Services, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Services to the Company that is due to:
7.6.3.1 – any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour and other costs);
7.6.3.2 – any request by the Client to change the delivery date(s), quantities or types of Services ordered; or
7.6.3.3 – any delay caused by any instructions of the Client in respect of the Services or failure of the Client to give the Company adequate or accurate information or instructions in respect of the Services.
7.6.4 – require prepayment of all future Services to be provided by the Company.
7.7 – Time for payment shall be of the essence of the Contract.
7.8 – All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.9 – The company may, without prejudice to any other rights it may have, set off any liability of the Client to the Company against any liability of the Company to the Client.
7.10 – The Company may offer payment credit terms to its Clients at its sole discretion. The Company reserves the right to withdraw or reduce credit facilities from Clients who do not make payment of their account in full upon payment becoming due and in accordance with these Conditions.
8. FREE ACCOUNTS
8.1 – Where the Client is offered access to the Services by way of a Free Account such Free Account shall be entirely at the discretion of the Company.
8.2 – The Free Account may be terminated by either party at any time without notice.
8.3 – Where any Free Account is terminated by the Company in accordance with clause 8.2 above, the Company shall be under no obligation to provide any reason for terminating the account. Where the Services include Reseller Services and the Free Account is terminated by or at the request of the Service Provider neither the Company nor the Service Provider shall be under any obligation to provide any reason for terminating the account.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 – All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Company.
9.2 – All Intellectual Property Rights in the Client Materials shall remain the property of the Client.
9.3 – The Client shall indemnify the Company against all damages, losses and expenses arising as a result of any action or claim that the Client Materials infringe the Intellectual Property Rights of a third party.
9.4 – The Client grants the Company limited, non-exclusive, non-transferrable, revocable and worldwide licence to access and use the:
9.4.1 – Client Materials; and
9.4.2 – name, logo, company name and trademark of the Client, solely for the purposes of providing the Services to the Client in accordance with the Contract.
9.5 – Where the Client submits Client Materials to the Company for the purpose of providing the Services to the Client in accordance with the Contract, the Client:
9.5.1 – warrants that:
9.5.1.1 – such Client Materials are the Client’s own original work or that of its licensors;
9.5.1.2 – the Client has the right to make the Client Materials available to the Company for the purpose of providing the Services in accordance with the Contract; and
9.5.1.3 – the Client Materials are and will continue to remain accurate, comprehensive and up-to-date and are not unlawful;
10. DATA PROTECTION AND DATA PROCESSING
10.1 – Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 10, Applicable Laws means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
10.2 – The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
10.3 – Without prejudice to the generality of clause 10.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Company for the duration and purposes of the Contract.
10.4 – Without prejudice to the generality of clause 10.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:
10.4.1 – process that Personal Data only on the written instructions of the Client unless the Company is required by Applicable Laws to otherwise process that Personal Data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Client;
10.4.2 – ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that the availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
10.4.3 – ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.4.4 – not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
10.4.5 – the Client or the Company has provided appropriate safeguards in relation to the transfer;
10.5 – The Company shall process the Client’s Personal Data in accordance with its Privacy Policy, from time to time and by entering into the Contract, the Client agrees that it has read the Privacy Policy and that it agrees to adhere to it.
11. CONFIDENTIALITY
11.1 – Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 11.2 – Each party may disclose the other party’s confidential information:
11.2.1 – to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
11.2.2 – as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 – Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 – Nothing in these Conditions shall limit or exclude the Company’s liability for:
12.1.1 – death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 – fraud or fraudulent misrepresentation;
12.1.3 – breach of the terms implied by section 10 of the Sale of Products Act 1979 or section 3 of the Supply of Services Act 1982 (title and quiet possession) or
12.1.4 – any other liability which cannot be excluded or limited under applicable law.
12.2 – Subject to clause 12.1, the Company’s total liability to the Client shall not exceed the cap.
12.3 – Subject to clauses 12.1 and 12.2, the Company’s total liability to the Client in respect of all other losses arising, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed the total Charges payable in connection with the Services in accordance with the Contract in the 6 months immediately preceding the event(s) giving rise to the claim (and where the Services comprise only of a Free Account or Affiliate Services where the Client makes no payment to the Company this shall be £0).
12.4 – In clauses 12.2 and this 12.3 the following definitions shall apply:
12.4.1 – “cap” means one hundred percent (100%) of the total charges in the contract year in which the breaches occurred;
12.4.2 – “total liability” includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.5 – The Client acknowledges and agrees not to bring any claim in connection with the Services against any individual employed or engaged by the Company.
12.6 – Unless the Client notifies the Company that it intends to make a claim under this Contract within the notice period, the Company shall have no liability for that event. The notice period shall start on the day on which the Client became, or ought reasonably to have become aware of an event giving rise to a claim under the Contract having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 – This clause 12 shall survive termination of the Contract.
13. TERMINATION
13.1 – Without limiting its other rights or remedies, the Company may terminate the Contract, without reason, by giving the Client one months’ written notice if:
13.1.1 – the Client fails to pay any amount due under the Contract on the due date for payment;
13.1.2 – (being an individual) a bankruptcy order is made against a Client, or an arrangement or composition is made with a Client’s creditors, or where the Client otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
13.2 – Without limiting its other rights or remedies, the Client may terminate the Contract, without reason, by giving the Company one month’s written notice to expire no earlier than the expiration of any Minimum Term. For the avoidance of any doubt, the Client is not entitled under this clause 13.2 to terminate the Contract at any time during any Minimum Term.
13.3 – Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.3.1 – the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;
13.3.2 – the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.3.3 – the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
13.3.4 – a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.3.5 – the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
13.3.5.1 – the other party (being an individual) is the subject of a bankruptcy petition or order;
13.3.6 – a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced upon or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.4 – Without limiting its other rights or remedies, the Company, or where applicable the Service Provider may suspend provision of the Services under the Contract or any other contract between the Client and the Company or the Service Provider if the Client becomes subject to any of the events listed in clause 13.3.2 to clause 13.3.6, or the Company reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
14. CONSEQUENCES OF TERMINATION
14.1 – On termination of the Contract for any reason:
14.1.1 – the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately upon receipt;
14.1.2 – the accrued rights, remedies, obligations and liabilities of the parties as at the expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.1.3 – Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
14.1.4 – clauses which expressly or by implication survive termination shall continue in full force and effect.
15. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure event.
15.1 – For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2 – the Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
16. GENERAL
16.1 – Assignment and other dealings –
16.1.1 – The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
16.1.2 – The Client shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
16.2 – Notices:
16.2.1 – Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
16.2.2 – Any notice shall be deemed to have been received:
16.2.2.1 – if delivered personally, when left at the address referred to in clause.
16.2.2.2 – if delivered by hand, on the signature of a delivery receipt; and
16.2.2.3 – if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
16.2.3 – This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.2.4 – A notice given under these Conditions is not valid if sent by email.
16.3 – Severance – If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.4 – Waiver – A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 – No Partnership or Agency – Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.6 – Entire Agreement – The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.6.1 – Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently and, for the avoidance of doubt, whether made by any employees and/or agents of the Company) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
16.6.2 – Nothing in this clause shall limit or exclude any liability for fraud.
16.7 – Third parties rights – A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.8 – Variation – Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Company.
16.9 – Governing law – This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
16.10 – Jurisdiction – Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).